Kerala High Court
Benny George vs The State Of Kerala on 29 January, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR
FRIDAY, THE 29TH DAY OF JANUARY 2021 / 9TH MAGHA, 1942
WP(C).No.26069 OF 2020(G)
PETITIONER:
BENNY GEORGE
AGED 49 YEARS
S/O P.C.GEORGE, PALAYAM KETTIYA VILAYIL, KARIMULAKKAL
DESAM, KOMALLUR P.O.CHUNAKKARA VILLAGE, MAVELIKARA
TALUK, ALAPPUZHA DISTRICT, PIN-690 505.
BY ADV. SRI.M.G.SREEJITH
RESPONDENTS:
1 THE STATE OF KERALA
REPRESENTED BY THE SECRETARY TO GOVERNMENT,
DEPARTMENT OF REVENUE, SECRETARIAT,
THIRUVANANTHAPURAM, PIN-695 001.
2 THE DISTRICT COLLECTOR,
ERNAKULAM DISTRICT, CIVIL STATION, KAKKANAD, PIN-682
030.
3 THE SUB COLLECTOR/RDO,
FORT KOCHI, OFFICE OF THE REVENUE DIVISIONAL OFFICER,
FORT KOCHI, ERNAKULAM DISTRICT, PIN-682 001.
4 THE THAHASILDHAR,
KANAYANNUR TALUK, KANAYANNUR, NEAR SUBHASH PARK,
MARINE DRIVE, KOCHI, KERALA, PIN-682 011.
5 THE VILLAGE OFFICER,
KADAVANTHARA, OFFICE OF THE VILLAGE OFFICE,
KADAVANTHARA, KOCHI, PIN-682 020.
6 THE SECRETARY,
COCHIN CORPORATION, KOCHI , ERNAKULAM DISTRICT, PIN-
682 011.
R1-R5 BY ADV.SRI.K.J.MANURAJ,GP
R6 BY ADV.SRI.S.SUDHISH KUMAR
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 29-01-
2021, THE COURT DELIVERED THE FOLLOWING:
WP(C).No.26069 OF 2020(G)
2
W.P.(C) No.26069 of 2020
-----------------------------------------
JUDGMENT
Petitioner holds an item of land measuring 4.36 Ares in survey
No.688/11 of Elamkulam Village in Ernakulam District. He purchased the said
land with two residential buildings therein in the year 2011, in terms of Ext.P1
assignment deed. The land covered by Ext.P1 assignment deed is one allotted
to the vendor of the petitioner by the Ernakulam Co-operative House
Construction Society Limited. It is stated by the petitioner that the said land is
part of 17.86 acres acquired by the Government for providing housing facilities
in Ernakulam Town and assigned to the Ernakulam Co-operative House
Construction Society Limited on 25.01.1965 as per Ext.P2 order for the said
purpose. It is also stated by the petitioner that the said land which is shown in
the revenue records as 'Nilam' was developed by the said society pursuant to
Ext.P2 order and allotted to its members including the vendor of the petitioner
and the allottees have constructed buildings in the said land after obtaining
building permits from the Corporation of Kochi. As the buildings constructed by
the vendor of the petitioner were not suitable for the use of the petitioner, it is
stated that the petitioner demolished the same and applied to the Corporation
for a building permit to put up a new building in the said land. It is alleged by
WP(C).No.26069 OF 2020(G)
the petitioner that the Corporation then insisted that the petitioner has to
obtain permission of the competent authority under Section 27A of the Kerala
Conservation of Paddy Land and Wetland Act, 2008 (the Act) for putting up new
constructions in the land as the land is shown in the revenue records as 'Nilam'.
The petitioner, thereupon, preferred Ext.P5 application for permission under
Section 27A of the Act. It is stated that the application was preferred in Form 9
of the Kerala Conservation of Paddy Land and Wetland Rules since the land was
converted as a house plot prior to the Kerala Land Utilization Order, 1967.
Ext.P5 has now been rejected by the third respondent as per Ext.P8 order
holding that the petitioner has not made available any evidence to show that
the land covered by Ext.P1 assignment deed is one converted prior to the
Kerala Land Utilization Order, 1967. Ext.P8 order is under challenge in the writ
petition. The petitioner also seeks directions to respondents 3 to 5 to change
the classification of the land as dry land in the revenue records.
2. Heard the learned counsel for the petitioner as also the
learned Government Pleader.
3. The fact that the land purchased by the petitioner as per
Ext.P1 assignment deed is one acquired by the State Government for the
purpose of providing house plots to the people residing in Ernakulam Town in
terms of the Land Acquisition Development Scheme is admitted in Ext.P8 order.
Similarly, the fact that 17.86 Acres of land out of the land acquired by the
Government under the Scheme has been allotted to the Ernakulam Co-
operative House Construction Society Limited is also admitted in Ext.P8. The
fact that the vendor of the petitioner is an allottee of the plot from the said
WP(C).No.26069 OF 2020(G)
Society is not disputed by any one. Similarly, it is admitted that the vendor of
the petitioner has constructed two buildings in the land after obtaining building
permits from the Corporation and those buildings were in existence when the
petitioner purchased the land as per Ext.P1 assignment deed. As stated, the
petitioner has demolished those buildings and he proposes to put up a new
building in its place. It is conceded that the Corporation is insisting permission
under Section 27A of the Act, as the land of the petitioner would fall within the
scope of 'un-notified land' under the Act. The basic question is whether the
petitioner requires to obtain permission under Section 27A of the Act for the
purpose of constructing a new building in the property since the land is shown
in the revenue records as 'Nilam'. If the petitioner is not required to obtain
permission under Section 27A of the Act for the said purpose, it is unnecessary
to examine the correctness of Ext.P8 order. In State of Kerala and Others v.
Binu Mathew Chacko and Others, 2020 (6) KHC 717, a Division Bench of
this court has held that the provisions of the Act will not have any application
to the lands acquired, developed and allotted for residential or other purposes
by Government or Governmental Agencies under the development schemes
framed under the Town Planning legislation. It is also held by the Division
Bench in the said case that permission is deemed to have been granted for
such lands under the Kerala Land Utilization Order. In the light of the said
decision of the Division Bench, the Corporation cannot insist compliance of the
provisions of Section 27A of the Act for considering an application for building
permit, even if the lands are shown in the revenue records as 'Nilam'. In Iype
Varghese v. Revenue Divisional Officer, 2020 (5) KLT 403, this Court held
WP(C).No.26069 OF 2020(G)
that where statutory permission for change of user of land is granted for
conversion of a paddy land to a garden land, then it is the obligation of the
competent authority under the Land Tax Act to make a fresh assessment of the
land so as to collect the higher land tax for such converted land and to issue
appropriate directions to the officers concerned to make additional entries in
the Basic Tax Register so as to reflect the nature of the land as garden
land/Purayidam in the said Register.
In the result, the writ petition is disposed of directing the sixth
respondent to grant the building permit applied for by the petitioner, if the
application is otherwise in order. This shall be done within three weeks. It is
made clear that the petitioner would be free to prefer appropriate application
before the competent authority under the Kerala Land Tax Act for re-
assessment of the land. Needless to say that if the petitioner prefers an
application for re-assessment under the Kerala Land Tax Act, the land of the
petitioner shall be re-assessed as dry land and appropriate additional entries
shall be made in the Basic Tax Register indicating the present classification of
the land.
Sd/-
P.B.SURESH KUMAR
Mn JUDGE
WP(C).No.26069 OF 2020(G)
APPENDIX OF WP(C) 26069/2020
PETITIONER'S EXHIBITS:
EXHIBIT P1 TRUE COPY OF SALE DEED NO 4609/2011 OF SRO,
ERNAKULAM
EXHIBIT P2 TRUE COPY OF GO MS NO 79/65/HLD DATED
25.1.1965 AND ITS TYPEWRITTEN LEGIBLE COPY
EXHIBIT P3 TRUE COPY OF THE RELEVANT PAGES OF BASIC TAX
REGISTER OF SURVEY NO 688/.11 OF ELAMKULAM
VILLAGE
EXHIBIT P4 TRUE COPY OF THE JUDGMENT DATED 16.8.2019 IN
WPC NO 22338/2019
EXHIBIT P5 TRUE COPY OF APPLICATION IN FORM NO 9 DATED
16.9.2019
EXHIBIT P6 TRUE COPY OF THE SCHEDULE OF PATTA BEARING
FILE NO B9.5859/87
EXHIBIT P7 TRUE COPY OF REPORT OF THE 5TH RESPONDENT
DATED 17.7.2020
EXHIBIT P8 TRUE COPY OF ORDER DATED 27.10.2020 BEARING
FILE NO K5-5407/2019 ISSUED BY THE 3RD
RESPONDENT
EXHIBIT P9 TRUE COPY OF THE JUDGMENT IN WPC NO
5874/2019 DATED 28.10.2019
//TRUE COPY//
PA TO JUDGE
